Citation Nr: 21041098 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-49 415 DATE: July 8, 2021 REMANDED A compensable rating for tension headaches is remanded. A compensable rating for heart palpitations prior to May 5, 2016, is remanded. A rating in excess of 10 percent for heart palpitations from May 5, 2016, forward, is remanded. Service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1973 to August 1976 and from July 1978 to February 1987. The Board notes additional evidence has been associated in the claims file that has not been reviewed by the agency of original jurisdiction (RO) or discussed in the Statement of the Case or Supplemental Statement of the Case. However, the Veteran waived his right to have the RO initially consider this evidence in March 2021. The Board is, thus, able to consider the additional evidence in the first instance. See 38 C.F.R. §§ 19.38(b)(3), 20.1304(c). The Board also notes that in March 2021, after certification of the appeal to the Board, private attorney J. Berry, moved to withdraw representation of the Veteran and provided notice to the Veteran of the intent to withdraw representation. Because the representative has demonstrated good cause for withdrawal of representation, the motion for withdrawal is granted; therefore, the Veteran is now unrepresented in this matter. 38 C.F.R. § 20.608 (c) (2020). Regarding the Veteran's claim for service connection for sleep apnea, as this appeal is ripe for adjudication, it has been merged with the current appeal stream. It comes before the Board on appeal from an August 2010 rating decision and was before the Board in June 2014 and June 2016. In July 2015, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's June 2014 decision denying entitlement to service connection for sleep apnea to the extent the Board did not address a theory of secondary service connection based on service connection for sarcoidosis. The Court affirmed the Board's denial of service connection for sleep apnea on a direct basis and remanded the claim to the Board for readjudication in compliance with its directives. The increased rating claims come before the Board on appeal from an October 2012 rating decision. An August 2011 Board decision remanded the then service connection claims. The claims were granted by an October 2012 rating decision of which the Veteran submitted a notice of disagreement as to the initial evaluations in April 2013. The claims were before the Board again in February 2019. That Board's decision denied a compensable rating for heart palpitations prior to May 5, 2016, and for a rating in excess of 10 percent from May 5, 2016, forward. The decision also denied a compensable rating for tension headaches. The Veteran appealed the denial to the Court and, in November 2020, a memorandum decision set aside the Board's decision to the extent it denied a compensable rating for heart palpitations prior to May 5, 2016, a rating in excess of 10 percent from May 5, 2016, forward, and a compensable rating for tension headaches. The Court remanded the claims to the Board for readjudication in compliance with its directives. 1. A compensable rating for tension headaches is remanded. The most recent VA compensation examination addressing the severity of the Veteran's headache disability was conducted in December 2016. The December 2016 VA examiner provided no explanation for marking that the Veteran's headaches were not prostrating, despite the Veteran's symptoms and need to lie in a dark room during a headache episode and given the October 2011 VA examiner found the Veteran did have prostrating headaches. Furthermore, given over four years have passed since the most recent VA compensation examination and the disability may have worsened, the Board finds the claim should be remanded to afford the Veteran another VA compensation examination to assess the current degree of disability of his headache disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 2. A compensable rating for heart palpitations prior to May 5, 2016, is remanded. 3. A rating in excess of 10 percent for heart palpitations from May 5, 2016, forward, is remanded. The Veteran currently has a noncompensable rating under 38 C.F.R. § 4.104, Diagnostic Code (DC) 7099-7010 prior to May 5, 2016, and a 10-percent rating from May 5, 2016, forward. The Veteran's specific heart condition is not listed on the rating schedule, and therefore the RO rated the Veteran's condition under DC 7099-7010 pursuant to 38 C.F.R. § 4.27, which provides that unlisted disabilities requiring rating by analogy will be coded as the first two numbers of the most closely related body part and "99." The Veteran's condition was then rated under the most closely analogous code, DC 7010 for supraventricular arrhythmias. 38 C.F.R. § 4.104. Under DC 7010, a 10 percent rating is warranted for permanent atrial fibrillation (lone atrial fibrillation), or one to four episodes per year of paroxysmal atrial fibrillation or other supraventricular tachycardia documented by ECG or Holter monitor. A maximum 30 percent rating is warranted for paroxysmal atrial fibrillation or other supraventricular tachycardia with more than four episodes per year documented by ECG or Holter monitor. Although the Veteran's condition is rated under the most closely analogous code, DC 7010 for supraventricular arrhythmias, there is evidence his condition could be rated under DC 7005. Regarding this, a VA examiner in December 2016 diagnosed the Veteran with atherosclerotic cardiovascular disease. Under DC 7005, a 10 percent evaluation is warranted for documented coronary artery disease with workload of greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or requiring continuous medication. A 30 percent evaluation is warranted for a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. A 60 percent evaluation is warranted for more than one episode of acute congestive heart failure in the past year, or a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted for chronic congestive heart failure, or when a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of less than 30 percent. 38C.F.R.§ 4.104, DC 7005. The Board observes there is conflicting evidence of record that must be resolved. First, an October 2011 VA examination report notes that no cardiac arrhythmia was found. The examiner then notes that November 2009 diagnostic testing showed cardiac arrhythmia. However, the examiner did not provide an explanation as to why arrhythmia was not found during the October 2011 examination. The Veteran was diagnosed with atherosclerotic cardiovascular disease in December 2016. However, in April 2018, a VA examiner opined that the Veteran has no definable cardiac diagnosis other than palpitations and stated the origins of the Veteran's palpitations are unknown. The examiner does not explain the earlier diagnosis of atherosclerotic cardiovascular disease in light of their statement that the Veteran has no definable cardiac diagnosis other than palpitations (there are also other cardiac diagnosis of record). They also provide insufficient rationale as to why the origins of the Veteran's palpitations are unknown. Furthermore, on remand, a VA examiner should clarify whether there is a relationship between the Veteran's diagnosed coronary artery disease and the palpitations as either a progression of the palpitations or as their etiological cause. Finally, the examiner should comment as to whether LVEF measurements would render a more accurate finding than METs testing. If the examiner finds that LVEF measurements would render a more accurate finding than METs testing, they should conduct the ECG testing. 4. Service connection for sleep apnea is remanded. The Veteran asserts service connection for sleep apnea is warranted to include as secondary to his service-connected disabilities. Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Aggravation of a nonservice-connected disease or injury by a service-connected disability may also be service-connected. 38 C.F.R. § 3.310 (b). The Court held in the case of Ward v. Wilkie, 31 Vet. App. 233 (2019), that aggravation pursuant to 38 C.F.R. § 3.310 does not require a permanent worsening of the condition. Rather, the Court explained that "aggravation" is any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence. Id. In January 2021, a VA examiner diagnosed the Veteran with obstructive sleep apnea with a date of diagnosis of 2010. Regarding the etiology of the Veteran's diagnosis, the examiner notes a correlation between sleep apnea and obesity and provides a negative etiological opinion. The Board finds the January 2021 examiner's conclusion as to why the Veteran's sleep apnea is not aggravated by any service-connected condition to be inadequate. For example, the examiner notes the Veteran was diagnosed with sleep apnea prior to his diagnosis of heart palpitations and concluded it is less likely than not the Veteran's sleep apnea was aggravated by his heart palpitations. The examiner essentially provides a rationale for that of causation as their rationale for aggravation. The Board notes the Court has held causation and aggravation are independent concepts and should have separate findings and rationales. See Atencio v. O'Rourke, 30 Vet. App. 74 (2018). As such, on remand, the VA examiner must provide separate findings and rationales relating to causation and aggravation. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records and any outstanding private medical records identified by the Veteran as pertinent to his claims. 2. Schedule the Veteran for an appropriate examination to assess the current level of the Veteran's service-connected headache disability. The examiner should examine the Veteran and render findings in accordance with the currently applicable disability benefits questionnaire and provide a full description of the disability and report all signs and symptoms necessary for evaluating his disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms and prostrating attacks. To the extent possible, the examiner should identify any symptoms, prostrating attacks, and functional impairments due to migraine headaches alone and discuss the effect of such on any occupational functioning and activities of daily living. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 3. Schedule the Veteran for an appropriate examination to assess the current level of the Veteran's service-connected heart disability. The examiner should examine the Veteran and render findings in accordance with the currently applicable disability benefits questionnaire and provide a full description of the disability and report all signs and symptoms necessary for evaluating his disability under the rating criteria. Additionally, the Board asks the examiner: (a.) Note all cardiovascular diagnoses; (b.) Clarify whether there is a relationship between the Veteran's diagnosed coronary artery disease and the palpitations as either a progression of the palpitations or as their etiological cause; (c.) Whether the Veteran exhibited arrhythmias during his October 2011 VA heart examination given objective testing from 2009 confirming "arrhythmia in the form of occasional premature ventricular contraction"; and (d.) Comment as to whether LVEF measurements would render a more accurate finding than METs testing. If the examiner finds that LVEF measurements would render a more accurate finding than METs testing, they should conduct ECG testing. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 4. The examiner who provided the January 2021 medical opinion, or another appropriate examiner, is asked to provide a supplemental medical opinion regarding the Veteran's service connection claim for sleep apnea . The Veteran does not need to be examined unless the physician determines otherwise. The entire claims file should be made available to and reviewed by the examiner. Based on the examination and review of the record, the examiner is to address the following question: Whether it is at least as likely as not (50 percent probability or greater) the Veteran's sleep apnea (i) was caused (in whole or in part) or (ii) aggravated (any incremental increase in disability or any additional impairment of earning capacity regardless of its permanence) by any of the Veteran's service-connected conditions. The examiner must provide separate opinions and rationales for secondary cause and secondary aggravation. Atencio, supra. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Buck Denton The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.